In 2006, in the El Masri case, a civil suit in which the plaintiff claimed to have been an innocent victim of the US extraordinary rendition program and sought redress from the former Director of the Central Intelligence Agency, private corporations allegedly involved in the program, and unknown employees of both the CIA and the private corporations, the Court granted the Government’s motion to dismiss, finding that the claim of State secrets was valid. The Court stated:

[I]t is important to note that, unlike other privileges, the state secrets privilege is absolute and therefore once a court is satisfied that the claim is validly asserted, the privilege is not subject to a judicial balancing of the various interests at stake.

…

[T]he substance of El-Masri’s publicly available complaint alleges a clandestine intelligence program, and the means and methods the foreign intelligence services of this and other countries used to carry out the program. And, as the public declaration makes pellucidly clear, any admission or denial of these allegations by defendants in this case would reveal the means and methods employed pursuant to this clandestine program and such a revelation would present a grave risk of injury to national security.

…

To succeed on his claims, El-Masri would have to prove that he was abducted, detained, and subjected to cruel and degrading treatment, all as part of the United States’ extraordinary rendition program. As noted above, any answer to the complaint by the defendants risks the disclosure of specific details about the rendition argument.

…

[W]hile dismissal of the complaint deprives El-Masri of an American judicial forum for vindicating his claims, well-established and controlling legal principles require that in the present circumstances, El-Masri’s private interests must give way to the national interest in preserving state secrets. The United States’ motion to dismiss must therefore be granted.

…

It is important to emphasize that the result reached here is required by settled, controlling law. It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri’s complaint. Nor does this ruling comment or rule in any way on the truth or falsity of his factual allegations; they may be true or false, in whole or in part. Further, it is also important that nothing in this ruling should be taken as a sign of judicial approval or disapproval of rendition programs; it is not intended to do either. In times of war, our country, chiefly through the Executive Branch, must often take exceptional steps to thwart the enemy. Of course, reasonable and patriotic Americans are still free to disagree about the propriety and efficacy of those exceptional steps. But what this decision holds is that these steps are not proper grist for the judicial mill where, as here, state secrets are at the center of the suit and the privilege is validly invoked.

Finally, it is worth noting that putting aside all the legal issues, if El-Masri’s allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected, that this lawsuit cannot proceed, and that renditions are a necessary step to take in this war, must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy. Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch.

United States, District Court for the Eastern District of Virginia, El Masri case, Judgment, 12 May 2006.

In 2001, a draft concurrent resolution was put before the US Congress for it to call upon the Government of Japan to “immediately pay reparations to the victims of [sexual enslavement of young women during colonial occupation of Asia and the Pacific Islands during the Second World War, known to the world as ‘comfort women’]”.

In 2005, the US Department of Justice submitted a Statement of Interest of the United States to the US District Court for the Eastern District of New York prior to that court’s consideration of Agent Orange Product Liability Litigation (The Vietnam Association for Victims of Agent Orange/Dioxin, et al. v. Dow Chemical Company, et al). That statement reiterated the US position that no rule of international law barred the use of chemical herbicides in war generally nor barred the destruction of crops intended for use by enemy forces. With regard to reparations, it stated:

[I]n light of the traditional rule of international law that war reparations are the subject of government-to-government negotiations, and not individual claims, recognizing such federal common law claims would be truly extraordinary.

War reparations include “all the loss and damage to which … Governments and their nationals have been subjected as a consequence of the war imposed upon them.” Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 275 (D.NJ. 1999), quoting The Versatile Treaty, art. 231. See also Black’s Law Dictionary at 1325 (8th ed. 2004) (defining reparations as “[c]ompensation for an injury or wrong, esp. for wartime damages or breach of an international obligation”). Claims based upon the United States’ use of chemical herbicides as a tool of war readily fall within the scope of war reparations claims.

Yet such war reparations claims have traditionally been, and as a matter of customary international law are, the subject of government-to-government negotiations, as opposed to private lawsuits. “Under international law claims for compensation by individuals harmed by war-related activity belong exclusively to the state of which the individual is a citizen.” Burger-Fischer. 65 F. Supp. at 273. Thus, “[l]ike other claims for violation of an international obligation, a state’s claim for a violation that caused injury to rights or interests of private persons is a claim of the state and is under the state’s control… Any reparation is, in principle, for the violation of the obligation to the state, and any payment made is to the state.” Restatement (3d) Foreign Relations § 902, comment i (emphasis added); cf Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 416 (2003) (“[historically, wartime claims against even nominally private entities have become issues in international diplomacy”).

This latter point undermines any assertion that private claims for war reparations are as widely accepted as the eighteenth century paradigms discussed in SosaSosa v. Alvarez-Machain, US Supreme Court, 2004]. To the contrary, it establishes precisely the opposite – as a matter of international law war reparations claims such as plaintiffs’ belong to states and not to individuals. To jettison this legal principle in order to recognize individual causes of actions for plaintiffs’ claims would run counter to Sosa’s admonition that the practical consequences of recognizing new causes of action “must” inform the Court’s judgment in crafting federal common law. In sum, the determination of whether, when, and how to pay reparations for conduct of the United States’ Armed Forces should stay where it has been for the past two-hundred-plus years by virtue of both the Constitution and principles of customary international law – with the Political Branches of government. For this reason as well, the Court should not recognize any federal common law cause of action in this case.

United States, Department of Justice, Statement of Interest of the United States submitted to the US District Court for the Eastern District of New York, In re: Agent Orange Product Liability Litigation (The Vietnam Association for Victims of Agent Orange/Dioxin, et al. v. Dow Chemical Company, et al), 12 January 2005, pp. 42–43.

In 2005, in its second periodic report to the Committee Against Torture, the United States stated that it “continues to hold the view that in addition to monetary compensation, States should take steps to make available other forms of remedial benefits to victims of torture, including medical and psychiatric treatment as well as social and legal services”.

United States, Second periodic report to the Committee Against Torture, 13 January 2006, UN Doc. CAT/C/48/Add.3/Rev.1, submitted 6 May 2005, p.27, § 83.